> >Date: Sun, 28 Mar 1999 16:54:00 -0500 >To: [EMAIL PROTECTED] >From: Dave Farber <[EMAIL PROTECTED]> >Subject: IP: the joint ACM/ISOC domain names letter > > > >>Date: Sun, 28 Mar 1999 10:46:41 -0800 >>From: Barbara Simons <[EMAIL PROTECTED]> > > >>Dave, >>This might be of interest to some of your readers. >>I've included the text of the letter below, as well >>as an equivalent Word attachment. >>Regards, >>Barbara >> >>WIPO Internet Domain Name Process >>World Intellectual Property Organization >>34 Chemin des Colombettes >>P.O. Box 18 >>1211 Geneva 20 >>Switzerland >> >>Re: WIPO�s RFC 3 >> >>To the WIPO Internet Domain Name Process Panel: >> >>As presidents of the oldest and largest educational and professional computing and >Internet >>societies, we are writing to you regarding the rules for the adjudication of >disputes of global >>top-level domains (gTLDs) proposed in WIPO's Interim Report on the Internet Domain >Name Process, >>RFC-3 (Dec. 23, 1998). We are particularly concerned that the plan may negatively >impact the >>Internet and may harm the civil liberties that create the climate of free inquiry >and debate in >>which science and technology flourish. We are also concerned that these rules will >inhibit economic >>development by discouraging participation in the Internet. >> >>Our first area of concern is that the proposed policy favors large corporations that >own trademarks >>over small companies and individuals. If an arbitration decision goes against the >trademark holder, >>the holder still has the option of taking the case to court. By contrast, if an >arbitration >>decision goes against the domain name holder, the domain name is quickly revoked, >even if the domain >>name holder chooses to appeal. The right to appeal a decision may not be equally >meaningful in all >>jurisdictions, especially those, which do not have judicial review of arbitrations >as a matter of >>course. Therefore, less wealthy parties often will be unwilling to risk losing what >will inevitably >>appear to be an uncertain case decided by uncertain rules, especially in a >"loser-pays" system. As >>a result, it seems all too possible that the net result of the WIPO proposals will >be to enable >>"reverse domain name hijacking" by large organizations. >> >>Our second area of concern is the protection of privacy. Efficient management of >the Internet >>requires that a technical contact for a domain name be quickly and easily >identifiable. The same is >>not true of the personal information of an individual domain name registrant. These >data >>historically were collected for operational purposes, but recent serious abuse >suggests that they >>should not be readily available in the aggregate. Given that out of millions of >existing >>registrations there were fewer than 1000 instances in which trademark owners invoked >the NSI dispute >>policy last year, despite the advantages which that policy gives to registered >trademarks, it >>appears that the DN/trademark problem may be surprisingly small. While there is a >very real problem >>of misuse of another's trademarks, this problem needs to be in balance with the >legitimate privacy >>rights and desires of the potentially enormous number of ordinary citizens who may >register domain >>names. >> >>In addition, a lack of privacy can have significant human rights implications, >especially in >>countries with major human rights abuses. While human rights groups fighting such >abuses sometimes >>can be protected by having their domain name registered by a third party residing >outside the >>country in question, such an option is not always available or may even subject the >third party to >>undue personal risks. Therefore, there must be some provisions for allowing the >resolution of >>trademark claims regarding disputed domain names that are registered anonymously or >indirectly for >>the real holder by a proxy. >> >>A third concern involves the scope of WIPO's proposals. WIPO should not expand the >jurisdiction of >>the proposed dispute resolution procedure to all types of intellectual property >disputes related to >>domain names. Rather, the focus should be limited to the primary issue: trademark >claims relating >>to misbehavior by cyber-squatters who register domain names identical to marks in >the hopes of >>selling them for a windfall profit. Any ADR proposed by WIPO should be restricted >to this class of >>problem, especially since we have very little experience as to how well >cyber-arbitration will work >>in practice. >> >>A final concern relates to the ways in which WIPO's proposals might be abused by >others to chill or >>suppress free speech and commercial expression. National public policy draws a >balance between the >>legitimate commercial rights of trademark holders and the freedom of expression of >citizens. Not >>every nation draws the same balance, but as this is sometimes a matter of >fundamental constitutional >>or social policy, it would be inappropriate for WIPO to propose a single worldwide >standard. In >>particular, some nations choose to give very great protection to non-commercial >expressive activity, >>even if it involves criticism of famous people or attacks on famous corporations or >trademarks. The >>Internet has been an important tool in supporting freedom of expression and robust >debate around the >>globe. Registration of domain names is both an expressive activity in itself and an >important tool >>for persons who wish to communicate a message. To the extent that the WIPO >proposals do not create >>safe harbors and protections for all legal personal, political, and commercial >expression, the >>Interim Report is insufficiently attentive to the basic human right of free speech >and open >>communication. >> >>We support the recommendations made by Willis Ware in his letter dated 3/12/99, and >strongly urge >>WIPO and the Panel of Experts to table the present draft report. We believe that a >new more narrow >>proposal should take into account the recommendations of Professor Michael Froomkin >(dated 2/24/99, >>subsequently updated and posted at http://www.law.miami.edu/~amf dated 3/14/99), >Professor Milton >>Mueller, the Domain Name Rights Coalition, and many others. ACM and the Internet >Society ask that >>this new proposal be circulated by WIPO for another round of public comment from the >Internet >>community followed by another round of revisions prior to being sent to ICANN. >> >>ACM and the Internet Society would welcome the opportunity to work with you on a new >proposal that >>preserves privacy, free speech, and open communication for personal, political, and >commercial >>expression while providing a fair, equitable, and economically sound policy for the >resolution of >>domain name disputes. >> >>Sincerely yours, >> >>Barbara Simons, Ph.D. >>ACM President >> >>Donald M. Heath >>President/CEO >>Internet Society >> >
